K. Hovananian Homes of Va., Inc. v. Claude Moore Charitable Found.

Thomas D. Horne, Judge

William T. Freyvogel, Esquire
Kenneth S. Mahieu, Esquire
8200 Greensboro Drive, Suite 325
McLean, Virginia 22102 Dexter S. Odin, Esquire
Timothy J. McEvoy, Esquire
9302 Lee Highway, Suite 1100
Fairfax, Virginia 22031-1215 AMENDED LETTER OPINION Gentlemen:

I have reviewed the extensive Findings of Fact and Post-Trial Memoranda in the above styled case. It would be a waste of judicial resources to restate the evidence and many arguments put forth by the parties in their papers. Counsel have fully and ably set forth the facts and law applicable to the issues raised.

The evidence does not support the relief sought by the complainant. It is clear that the plain words of the Assignment and Assumption Agreement, in requiring a tender and release, contemplates something more than a mere execution by the seller and subsequent transmittal to the assignor and assignee. Counsel for Mr. Criswell properly called for closing. Complainant, believing that no such authority existed, decided to deem such notice to close ineffectual. Accordingly, it elected to notify Defendant prior to the closing date that it considered any attempt by the Defendant to close on August 25, 2004, to be an act of default. In so doing, it assumed the risk of any misconstruction of the contract documents.

Moreover, they cannot now assert that the defendants are estopped by their silence. Defendant was informed by the attorney for the complainant in advance of the proposed closing date that it would be considered an act of default should it appear for closing on August 25, 2004. Subsequently, complainant neither said or nor did anything that would evidence a contrary intent. It may be fairly concluded that Complainant's interpretation of the contract, and not the subsequent silence of the defendant, was the driving force behind its continuing expenditure of funds in support of development of the property. Defendant need only reasonably rely on complainant's stated position, and not silence on its part, as the reason behind the continuing involvement of the purchasers in the project. Any risk attendant to a misinterpretation cannot now be assigned to the sellers under the guise of estoppel by silence.

Counsel for the defendant may prepare a Final Decree dismissing the case and entering final judgment for the defendants. Defendant's Findings of Fact, to the extent they contain references to the record (and not argument), shall be included in the Final Decree.

Very truly yours,

Thomas D. Horne, Judge